As some readers of this blog know, I’ve been a canon law historian long before I began to think about hermaphrodites or intersex in history. On the whole, (medieval) canon law is largely silent on hermaphrodites. In particular, the extensive canon law on marriage for centuries was appareantly not concerned with questions of doubtful or double sex. The only occurence of the topic in the Decretum Gratiani (compiled ca. 1140) is a quotation from Roman law on witnesses for last wills; from this, later canonists inferred that the ordination of hermaphrodites, while not legal, was in some cases valid. Huguccio’s comment on the legal status of hermaphrodites for centuries was quoted in cases of ‚doubtful sex‘, in particular in marriage cases.

1. Decretum Gratiani, C. 4, q. 2 et 3, c. 3 § 22

2. Summa Parisiensis 2.4, q. 2/3 s.v. hermaphroditus

Hermaprodite: In hot regions, many are born double-sexed; of they are closer to men, they give testimony like men.Hermesis translated Mercury, frodisfoam, that is, Venus. Thus, hermaphroditus, the one born from the two [Mercury and Venus] acts in both forms.

3a. Huguccio, C. 27, q. 1, c. 23 ad v. ordinari

What, if the [candidate for ordination] is a hermaphrodite? For ordinations, the same distinction is made as for giving testimony (for which see [Gratian’s Decretum at] C. 4, q. 3, c. 3 § 22). Thus, if [the hermaphrodite] is more female than male, he is not to be ordained; in the opposite case, he is able to receive holy orders, but not allowed to be ordained because of deformity and monstrosity (see [Gratian’s Decretum at] D. 36, c. 1 and D. 49, last canon). What if he/she equally tends to both sexes? Then he/she does not receive holy orders.

3b. Huguccio, C. 4 q. 2 et 3 c. 3 § 22 ad v. sexus incalescentis

If [a hermaphrodite] has a beard, prefers doing manly tasks to doing females ones, and always prefers to keep company with men, not women, this is a sign that the male sex prevails inhim and that he thus can give testimony in cases where women are excluded, i.e. in witnessing testaments and last wills, and therefore can be ordained. If, however, [the hermaphrodite] lacks a beard, always wants to be with women and to do female tasks, this is a sign that the female sex prevails in her, that she is not allowed to witness, where women are excluded, i.e. in witnessing testaments, and therefore cannot be ordained, because woman does not receive holy orders.

[The Latin text contains some errors only partly corrected by the writer. In the text above the errors are emended drawing on other manuscripts; for more details, see Rolker 2014, ]

4. Hostiensis, Summa aurea

It is asked whether a hermaphrodite, that is, someone having the sexual organs of man andwoman, can be witness for a testament? […] What if there is perfect equality [of the sexes]? Can s/he never be ordained? May s/he marry a man or a woman, and if s/he first contracts marriage with a man, can s/he contract marriage with a woman after his death? Certainly, in all these matters the sex which prevails has to be respected. (Johannes Teutonicus.) On monsters, one can ask monstrous questions.

3 Antworten

Dear colleague,
A short message to tell you that I’ve been following your blog for some months now and that I’ve found it very interesting. Thank you also for writing some of your texts in english ; it allows non german speaker to understand them.
I especially very much liked this post on canon law since I’ve been wondering for a while what was the position of canon law about intersex. While reading french legal cases from the 16-18th century, I had the impression that canon law only recognized man and women, but I’ve recently been shown some other source from medieval times that where less categoric on this subject.
This subject is also of interest nowadays, since I know that some catholic intersex people are right now considering to ask the church to correct the catholical register of baptism in order to correct the sex mentionned in their act of baptism.

Dear Benjamin,
thanks for your feedback. I am not familiar with contemporary canon law; but at least well into the 19th century, the medieval authroties on canon law I dealt with in my recent blogpost were quoted in marriage cases brought to the Rota at Rome. As for early modern cases, Brendan Roeder has brought to light some interesting examples: https://intersex.hypotheses.org/author/brendanroeder
As for the baptismal registers, I’d be very keen to learn more about the corrections you mention, as it is indeed a very similar question as the question of civil registers brought to the German high courts these days!
Best wishes,
Christof